Symposium: A soft landing at the Supreme Court

Throughout this week the blog is hosting an online symposium on Trinity Lutheran Church of Columbia, Inc. v. Pauley, the challenge by a Missouri church to its exclusion from a state program that provides grants to help non-profits buy rubber playground surfaces. Amy Howe introduced the case for this blog.

Hannah Smith and Luke Goodrich at the Becket Fund for Religious Liberty filed an amicus brief in support of petitioner in Trinity Lutheran Church v. Pauley.

Some First Amendment cases are hard. Like a schoolyard of packed gravel, they offer no comfortable place for the Supreme Court to land.

Then there are cases like Trinity Lutheran Church v. Pauley. In this case, the state of Missouri decided to protect schoolchildren from hard landings by helping nonprofit organizations resurface their playgrounds with shredded tires. All sorts of nonprofits were eligible for the program – but churches were banned. According to the state, letting churches get shredded tires would violate an old state constitutional provision, called a Blaine Amendment, that was designed to block funding for Catholic schools.

The problem is, a long line of Supreme Court cases says that the government can’t ban religious people from getting public benefits simply because they are religious. And a long line of Supreme Court Justices has decried the history of state Blaine Amendments as ugly, anti-Catholic bigotry.

Simply put, a skinned knee is a skinned knee whether it happens at a Lutheran school or a Montessori school. The government can’t deny safety benefits to kids at a Lutheran school simply because their school is religious – or else it can expect a hard landing at the Supreme Court.

Neutrality

This principle of government neutrality towards religion is not new. It is supported by both the Free Exercise and Establishment Clauses of the First Amendment – complementary provisions, which, read together, support the proposition that “one’s religion ought not to affect one’s legal rights or duties or benefits,” as Justice Sandra Day O’Connor once said.

The Court recognized this neutrality principle almost seventy years ago in Everson v. Board of Education – its very first decision applying the Establishment Clause to the states – explaining that the government may not exclude “Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

The Court later applied this neutrality principle in 1978 in McDaniel v. Paty. There, the Court ruled that the Free Exercise Clause prohibits government from excluding individuals from publicly available opportunities based on their religious status. Striking down Tennessee’s constitutional provision that disqualified ministers from serving in the state legislature, Chief Justice Warren Burger explained the problem: to “condition the availability of benefits” upon Paul McDaniel’s “status as a ‘minister’” “penalizes the free exercise of [his] constitutional liberties” in violation of the First Amendment. Justices William Brennan and Thurgood Marshall also viewed the clergy-disqualification provision as problematic because “it establishes a religious classification – involvement in protected religious activity – governing the eligibility for office.” Thus, McDaniel established the baseline rule that “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.”

The Court reaffirmed this rule in 1990 in Employment Division v. Smith, reiterating (and citing McDaniel for the proposition) that government may not “impose special disabilities on the basis of religious views or religious status.” And the Court expanded on this rule in 1993 in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, in which it unanimously struck down ordinances that violated the “minimum requirement of neutrality . . . that a law not discriminate on its face,” nor “target[] religious conduct for distinctive treatment.”

In short, from Everson to McDaniel to Smith to Lukumi, the Court has consistently applied the baseline rule that the Free Exercise and Establishment Clauses forbid the government from denying public benefits based on religious classifications. But that is just what Missouri has done here. It has excluded all churches from the scrap-tire program, regardless of whether they meet all other secular, neutral criteria. That is just the sort of “special disabilit[y] on the basis of religious . . . status” that the First Amendment forbids.

Locke

Missouri suggests that the Court’s 2004 decision in Locke v. Davey changes the baseline rule. There, the Supreme Court addressed the question whether the federal constitution requires a state to fund scholarships for devotional theology degrees, because it also funds scholarships for other degrees. The Court held that the federal constitution does not require states to do so because states have the authority to choose which degree programs to fund.

But Locke does not change the outcome here, for two important reasons. First, the denial of funds in Locke was not based on anyone’s religious status; it was based on the state’s decision not to fund a particular program of study. Here, Trinity Lutheran was banned from the scrap-tire program solely because it is a religious institution. To use an analogy from the abortion context: Locke is like a state’s decision not to fund abortions, which the Supreme Court has upheld; Trinity Lutheran is like a state’s decision to deny funds to all women who have had an abortion, which the Supreme Court has said would be unconstitutional.

Second, Locke said that the denial of funds there was tied to a “historic and substantial [anti-establishment] interest” – avoiding the use of public funds to support theological training of the clergy. Here, there is no legitimate concern that the funding would lead to anything like an establishment of religion. The scrap-tire program reduces waste in landfills and makes playgrounds safer. Even under the Court’s most stringent “no aid” decisions, like the 1975 decision in Meek v. Pittinger, letting religious groups participate in the scrap-tire program would be permissible, because it would provide “secular and nonideological services unrelated to the primary, religion-oriented function of the sectarian school.”

More importantly, under the Court’s current Establishment Clause jurisprudence, letting religious groups participate in the scrap-tire program would be acceptable because, as the Court wrote in Agostini v. Felton, “both religious and secular beneficiaries [would be included] on a nondiscriminatory basis” using “neutral, secular criteria that neither favor nor disfavor religion.” In short, shredded tires protect children’s bodies – they do not indoctrinate their minds.

Blaine

Unable to justify the exclusion of churches under the First Amendment, the state of Missouri resorts to state law, essentially arguing that “our state’s Blaine Amendment made us do it.” Blaine Amendments are state constitutional provisions enacted during a wave of anti-Catholic bigotry in the 1800s. They exist in over thirty state constitutions and they prohibit the government from giving aid to any institution that is “sectarian” (which, back then, was code for “Catholic”). These old, anti-Catholic provisions are often invoked to justify denying generally available state aid to any religious organization.

But, of course, state constitutional provisions can’t trump the federal constitution. And at least three current Justices (Anthony Kennedy, Clarence Thomas, and Stephen Breyer) have recognized the anti-Catholic roots of Blaine Amendments. Two of those Justices (Thomas and Kennedy) have agreed that Blaine Amendments were “born of bigotry” and “should be buried now.” And four Justices who only recently departed from the Court (William Rehnquist, John Paul Stevens, Antonin Scalia, and David Souter) joined them in condemning the anti-Catholic history of Blaine Amendments. Thus, there is no reason to assume that the Supreme Court will give deference to Missouri’s Blaine Amendment.

In sum, Missouri has created a generally available benefit to make playgrounds safer for young children. Making that benefit available to all children equally – regardless of whether their playground is owned by a church or not – is good for children and good constitutional law. The longstanding principle of religious neutrality provides a soft landing that all of the Justices can support.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.